Bombay High Court
Maroti S/O Gulab Balki And Another vs Union Of India Thr. General Manager ... on 10 October, 2023
Author: G. A. Sanap
Bench: G. A. Sanap
2023:BHC-NAG:15531
1 FA555.18 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 555 OF 2018
APPELLANTS : 1] Maroti S/o Gulab Balki
Aged about 63 years, Occu. Retired
(Died. Deleted.)
2] Smt. Manjulabai W/o Maroti Balki
Aged 55 years, Occu. Household
Both R/o Umri (B), tah. Saoner, Dist. Nagpur.
(Died, thru. LRs)
2A. Mangesh S/o Maroti Balki,
Age about 37 years, Occu. Private.
R/o At Post Umri, Tq. Saoner,
Dist. Nagpur.
VERSUS
RESPONDENTS : Union of India,
through its General Manager,
Central Railway, Mumbai.
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Mr. Kunal Mirache, Advocate for the appellant no.2A
Mr. P. V. Navlani, Advocate for the respondent
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CORAM : G. A. SANAP, J.
DATED : OCTOBER 10, 2023.
ORAL JUDGMENT
1. In this appeal, filed under Section 23 of the Railway Claims Tribunal Act, 1987 (hereinafter referred to as "the Act of 1987"
2 FA555.18 (J).odt for short), challenge is to the judgment and order dated 25.07.2017 passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur, whereby the claim filed by the original appellants under Section 16 of the Act of 1987 for compensation was dismissed.
2. Background facts :-
Appellant nos.1 & 2 are the parents of deceased Jitendra.
During pendency of the appeal, they died. Appellant no.2A, being son of deceased appellants, has been substituted in their place. It is stated that on 10.05.2014, deceased Jitendra, after purchasing ticket bearing no. U-95339914, boarded unknown train for journey from Nagpur to Pune. It is stated that when the unknown train reached near Jalamb railway station, there was sudden jerk to the train, due to which the deceased fell from running train and died. Death of the deceased, according to the appellant, was in an untoward incident. Dead body was found on 13.05.2014.
3. Respondent-Railway filed written statement and opposed the claim. It was contended that death was not in an untoward incident. The claim was not maintainable. The deceased was not a bona fide passenger of any train. The ticket was not recovered from the 3 FA555.18 (J).odt pocket of the deceased at the time of inquest panchanama. It was stated that the claim for compensation was baseless.
4. Learned Member of the Tribunal has framed as many as four issues. One witness was examined by the claimants as AW1, the father of the deceased. Respondent-Railway has examined one witness. The Tribunal, on consideration of the evidence, dismissed the claim. Being aggrieved by this judgment of the Tribunal, the deceased appellants filed this appeal and after their death, appellant no.2A has been substituted in their place.
5. I have heard Mr. Kunal Mirache, learned advocate for the appellant and Mr. Pankaj V. Navlani, learned advocate for respondent. Perused the record and proceedings.
6. In the facts and circumstances, following points fall for my determination :-
i] Whether the deceased died in an untoward incident as understood by the provisions of Section 123(c)(2) of the Railways Act, 1989 ?
ii] Whether the deceased was a bona fide passenger travelling with valid journey ticket ?
4 FA555.18 (J).odt iii] Whether appellant no.2A, as a legal representative, is entitled to get compensation after the demise of appellant nos.1 and 2 ?
iv] What Order ?
7. Learned advocate Mr. Kunal Mirache for the appellant submitted that there is ample evidence on record to show that on the given date, the deceased was travelling from Nagpur to Pune and on the way near Jalamb railway station, he fell from running train and died.
Learned advocate pointed out that the bag of the deceased containing the documents and journey ticket was found by the railway police at Pune and on the basis of documents found in the bag, police established contact with the family members of the deceased. The ticket was recovered. Learned advocate submitted that the ticket produced on record proves beyond doubt that the deceased was travelling in an unknown train with valid journey ticket. Learned advocate further submitted that the deceased was resident of Saoner, district Nagpur. Learned advocate pointed out that AW1 Maroti Balki, father of the deceased, in his evidence has stated that the deceased on the date of the incident had gone to Pune by a train. Learned advocate submitted that the dead body was found by the side of the track at some distance near 5 FA555.18 (J).odt Jalamb railway station. Learned advocate, therefore, submitted that the facts and circumstances clearly indicate that the deceased while travelling fell from a running train and died. Learned advocate submitted that therefore, the defence of the railway that death was not in an untoward incident, cannot be accepted.
8. Learned advocate for the respondent-Railway submitted that the possibility of the deceased falling from running train is not at all possible. Learned advocate submitted that admittedly, the deceased started journey from Nagpur on 10.05.2014 and his dead body was found by Railway Keyman on 13.05.2014. Learned advocate submitted that if the deceased had fallen from a running train, then his dead body would not have been thrown away at the distance of about 20 feet and the dead body would have been easily located by the Loco Pilots of passing trains. Learned advocate submitted that this circumstance creates a doubt about the case of the appellant that the deceased, on the given date, had travelled in a train. Learned advocate submitted that the ticket was not recovered from the pocket of the deceased and therefore, the Tribunal was right in holding that the deceased was not a bona fide passenger travelling with valid journey ticket. Learned 6 FA555.18 (J).odt advocate submitted that the case of the appellant, as sought to be put forth that the bag of the deceased was recovered by the Railway Police at Pune, has not been supported by any evidence. In short, learned advocate has supported the judgment and order passed by the Tribunal.
9. In order to appreciate the rival submissions, I have gone through the record and proceedings. The first and foremost, it would be necessary to consider whether the deceased died due to fall from a running train while proceeding from Nagpur to Pune and as such his death was in an untoward incident. The undisputed facts having bearing with the issue need to be stated. The deceased was resident of Saoner, district Nagpur. His dead body was found by the side of the Railway track at some distance from Jalamb railway station. The dead body was noticed by Railway Keyman on 13.05.2014. The dead body was in fully decomposed condition. The relatives or friend of the deceased did not accompany him during the journey. It is true that the dead body was not located by the Loco Pilot of any of the passing trains or by the railway staff. In my view, these facts would not go against the appellant. There could be number of reasons for not locating the dead body by the Loco Pilots or railway staff. What is important is whether 7 FA555.18 (J).odt the dead body was lying by the side of the railway track or not.
10. It is not the defence of the Railway that someone had brought the dead body to the railway track and kept it there for one reason or the other. The bag of the deceased was found by the railway police at Pune railway station. It is true that the investigating officer, attached to Jalamb police station, has not conducted any investigation in this regard. It is to be noted at this stage that when the statement of the father of the deceased was recorded by police on 26.05.2014, he had disclosed to Jalamb police that on 11.05.2014, a phone call was received from railway police Pune and the police informed that the bag of the deceased with documents including railway journey ticket was found by them. It has come on record that the elder brother of the deceased had gone to Pune and collected the said bag from railway police. It is to be noted that this statement of the father of the deceased has not been challenged. In my view, this fact is the most important fact in the chain of events. In the ordinary circumstances, there was no reason for the deceased to go to Jalamb. In this case, if all the dots are connected the same would indicate that all these dots can lead to only conclusion that on the given date the deceased had boarded the train at Nagpur for 8 FA555.18 (J).odt Pune. The post mortem report is on record. The Medical Officer has opined that death was due to haemorrhagic shock due to injury to vital organs i.e. lungs and liver. Column No. 17 of the PM report indicates that there were multiple injuries on the dead body. There was no eye- witness to the incident. It is to be noted that the distance from Nagpur to Jalamb is about 300 Kms. In the teeth of the above stated facts and circumstances, the possibility of the deceased falling from a running train due to jerk or loss of balance cannot be ruled out. The question is whether in such a situation the defence of negligence or criminal negligence is available to the Railway or not ?
11. It is to be noted that the liability of the Railway is based on no fault theory or strict liability. In case of strict liability or liability based on no fault theory, the defence of negligence or contributory negligence is not available to the Railway. It is not the case of the Railway that the deceased was run over by any train while crossing railway line or otherwise. Even if such defence had been taken, the same would have been without any substance. The dead body was found by the side of the railway track. The body was not cut into pieces. The injuries sustained by the deceased could be possible due to 9 FA555.18 (J).odt fall from running train. The Hon'ble Apex Court in Union of India .vs. Rina Devi, reported at AIR 2018 SC 2362 while considering this issue has held that the defence of negligence is not available to the Railway if the case falls within the first part of Section 124-A of the Railways Act, 1989. It is held that the railway can not be held liable to pay the compensation if the case falls under any of the clauses of the proviso to Section 124-A of the Act of 1989. For the purpose of ready reference, it would be appropriate to reproduce paragraph 16.6 from the decision in Rina Devi's case (supra). It is extracted below :
16.6 We are unable to uphold the above view as the concept of 'self inflicted injury' would require intention to inflict such injury and not mere negligence of any particular degree. Doing so would amount to invoking the principle of contributory negligence which cannot be done in the case of liability based on 'no fault theory'. We may in this connection refer to judgment of this Court in United India Insurance Co. Ltd. versus Sunil Kumar [2017(13) SCALE 653] laying down that plea of negligence of the victim cannot be allowed in claim based on 'no fault theory' under Section 163A of the Motor Vehicles Act, 1988.
Accordingly, we hold that death or injury in the course of boarding or de-boarding a train will be an 'untoward incident' entitling a victim to the compensation and will not fall under the proviso to Section 124A merely on the plea of negligence of the victim as a contributing factor."
12. In my view, in this case, keeping in mind the fact circumstances and the evidence, by applying the provisions of law to the same, it goes without saying that the death of the deceased was in an 10 FA555.18 (J).odt untoward incident. The Tribunal, in my view, has miserably failed to appreciate this aspect properly and came to a wrong conclusion.
13. The next important question is whether the deceased was a bona fide passenger or not. The major part of this point has been considered while addressing the first point. The journey ticket is produced on record. It is marked as Exh.A-1. Perusal of this ticket would show that it was a 2nd class ticket for journey by superfast train from Nagpur to Pune. It was purchased at 14.37 hours on 10.05.2014. It has come on record that the bag of the deceased was found by railway police, Pune at Pune railway station on 11.05.2014. On the basis of the contact details from the documents in the bag, Pune railway police contacted the family of the deceased. Elder brother of the deceased had gone to Pune and collected the bag. The ticket was found in the said bag. The Tribunal has not accepted this railway ticket on the ground that at the time of inquest panchanama, the ticket was not found in the pocket of the deceased. In my view, the Tribunal was not right in recording this finding. AW1 has stated in his evidence that on 10.05.2014, the deceased had gone to Pune by railway. No evidence has been adduced in rebuttal to discard and disbelieve this fact as well as 11 FA555.18 (J).odt ticket. It is not the case of the Railway that this ticket is manipulated or brought into existence to suit the cause of the appellants. In my view, this evidence is more than enough to support the claim of the appellant that the deceased was a bona fide passenger travelling with a valid journey ticket.
14. The next important question is as to whether appellant no.2A would be entitled to get compensation being the legal representative of the deceased appellants. In order to substantiate this contention, learned advocate has relied upon a Division Bench decision of Kerala High Court in M.F.A. No. 192/2010 (Krishnakumar G. .vs. Union of India, thru. General manager, Southern Railway, Chennai), decided on 10.06.2011. The Division Bench of Kerala High Court has aptly addressed this issue. Paragraph 36 of the decision provides complete answer to this question. It is extracted below :-
"36. The up shot of the above discussions is that the amount due under Section 124 A can be claimed only by a dependant and not by a mere legal heir/legal representative. But the legal heirs of such dependent/claimant in the event of death of the dependent/claimant can certainly initiate or continue the proceedings for recovery of the amount. There is absolutely nothing in Chapter XIII which can suggest that it is a self contained Code which deals with inheritance/succession etc. The general law of the land will certainly apply, in the absence of an express provision or necessary implication that can be drawn, 12 FA555.18 (J).odt to such claims of deceased dependent. The claim can be continued by the legal representatives of such dependent/claimant. We are unable to agree that the right under Section 124 A is not heritable. Question No.1 is so answered."
15. In view of this, appellant no.2A being the legal representative of the deceased appellants, after their death, can certainly continue the proceeding for recovery of the amount of compensation. In view of this, I am of the view that appellant no.2A is entitled to get compensation.
16. In view of the above, I conclude that the Tribunal has failed to consider the material on record and came to a wrong conclusion. Accordingly, I answer all the issues in affirmative.
17. In this case, the accident had occurred on 10.05.2014. Learned advocates for the parties submit that in view of the Notification issued by Ministry of Railways (Railway Board) dated 22.12.2016, came into effect from 01.01.2017, in case of death claim the claimant/s is/are entitled to get compensation of Rs.8,00,000/- (Rupees Eight lakhs only). Before issuance of this notification, in case of death claim, compensation provided was Rs.4,00,000/- (Rupees Four Lakhs 13 FA555.18 (J).odt only). As per the old provisions, the claimant would have been entitled to get Rs.4,00,000/-. Learned advocates drew my attention to the decision of the Hon'ble Apex Court in Union of India .vs. Radha Yadav, reported at (2019) 3 SCC 410, wherein Hon'ble Supreme Court has held that in case of old claim after this notification, the claimant would be entitled to get compensation of Rs.8,00,000/-, without interest, if the compensation provided earlier with interest is less than Rs.8,00,000/-. Learned advocate submitted that the compensation of Rs.4,00,000/- with interest would not be more than Rs.8,00,000/-. Therefore, in this case, the claimant would be entitled to get Rs.8,00,000/- (Rupees Eight Lakhs only), without interest.
18. Accordingly, the First Appeal is allowed.
(i) The impugned judgment and award dated 25.07.2017, passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur in Case No. OA(IIu)/NGP/2014/0186, is quashed and set aside.
(ii) The claim application is allowed. Respondent - Central Railway is directed to pay Rs.8,00,000/- (Rupees Eight Lakhs only) towards compensation to appellant no.2A.
(iii) The amount be deposited within four months from today 14 FA555.18 (J).odt in the bank account of the appellant/claimant, directly. The appellant shall provide the particulars of his bank account to the respondent.
iv] The appellant will not be entitled to get any interest on the said amount. However, the appellant would be entitled to get interest @ 7% per annum from the date of this judgment till realization of the amount, if the amount is not deposited within four months.
v] The First Appeal stands disposed of. No order as to costs.
( G. A. SANAP, J. ) Diwale Signed by: DIWALE Designation: PS To Honourable Judge Date: 23/10/2023 12:18:15